Alvarez v. Southeast Commercial Cleaning, LLC
136 So. 3d 329
La. Ct. App.2014Background
- Plaintiff Irma Alvarez filed suit for slip-and-fall injuries at Boomtown Casino on January 31, 2012, alleging the accident occurred on January 31, 2011.
- Defendants include Boomtown entities, Louisiana Gaming, Southeast Commercial Cleaning, and its insurer Tudor; they filed peremptory exceptions of prescription in October 2012.
- Defendants offered documentary evidence (incident report, surveillance video, ER records) suggesting the accident occurred on January 30, 2011.
- The trial court held the accident occurred on January 30, 2011, finding the one-year prescriptive period ended January 30, 2012 and Alvarez’s petition was prescribed.
- Alvarez argued for strict construction in favor of maintaining the action and relied on conflicting records alleging January 31, 2011 as the date of the accident.
- On appeal, the court affirmed the trial court’s ruling, applying manifest error review to the trial court’s factual determinations about the accident date.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in sustaining prescription | Alvarez argues date of accident is Jan 31, 2011, keeping suit timely | Evidence shows accident on Jan 30, 2011; filing Jan 31, 2012 prescribed | No reversible error; date established as Jan 30, 2011; prescription valid |
| Admissibility of Boomtown incident report and video | Report not properly authenticated; video inadmissible | Report authenticated as business-record under Art. 803(6); video admissible | Admission proper; no abuse of discretion |
| Application of contra non valentem | Fourth category applies since injury discovered Jan 31, 2011 | Ignorance of injury does not stop prescription when injury is known or knowable earlier | Not applicable; prescription started Jan 30, 2011 |
| Right to amend petition to cure prescription | Should be allowed to amend to remove prescription issue | Amendment would not cure the grounds; discretionary denial appropriate | No abuse; amendment denied |
Key Cases Cited
- Bourg v. Woods, 31 So.3d 1123 (La.App. 5 Cir. 2010) (one-year prescriptive period in tort actions)
- Fontenot v. ABC Ins. Co., 674 So.2d 960 (La. 1996) (ignorance of injury extent not delaying prescription; knowledge of actionable harm required)
- Hines v. Browning-Ferris, Inc., 73 So.3d 479 (La.App. 2 Cir. 2011) (knowledge sufficient to start prescription; inquiry notice suffices)
- Seitz v. Scofield, 812 So.2d 764 (La.App. 5 Cir. 2002) (manifest error standard for factual findings on appeal)
- Dugas v. Bayou Teche Water Works, 61 So.3d 826 (La.App. 3 Cir. 2011) (burden on prescription exception qua peremptory exception; standard of review)
- Olivier v. LeJeune, 668 So.2d 347 (La. 1996) (admissibility of videotape depends on case facts and purposes)
- Aguilar v. Transit Management of Southeast Louisiana, Inc., 900 So.2d 65 (La.App. 5 Cir. 2005) (business-record exception to hearsay applies to incident reports)